Mohd Hishamudin Yunus J:

This is an appeal by the appellant/plaintiff against the decision of the learned Sessions Court Judge who, in allowing the plaintiff's claim for negligence (running down) against the respondents/defendants, made a finding that the plaintiff was guilty of contributory negligence; and, as a consequence, reduced the award by 25%.

The appeal is against the finding of contributory negligence as well as on quantum.

The facts of the case are as follows.

On 23 March 1998, a road accident occurred along the Klang-Port Dickson main road, at km 62. Tne accident involved a collision between a motorcycle and a lorry. The motorcycle was driven by the deceased husband of the plaintiff, whilst che lorry was driven by the 1st defendant. The deceased husband of the plaintiff died of injuries sustained as a result of the accident. He was 27 years old when he died.

The 1st defendant is sued by the wife and children of the deceased, as dependants, for the tort of negligence, whilst the second defendant, as the registered owner of the lorry as well as the employer of the 1st defendant, is sued for vicarious liability in respect of the tort of the 1st defendant.

The deceased was an Orang Asli who lived with his family in Kampung Orang Asii Tanjung Sepat.

It is not disputed that on the day the question the deceased's motorcycle and the 1st defendant's lorry were travelling in the same direction, that is to say, from the direction of Klang towards the direction of Port Dickson; and that the deceased's motorcycle was travelling in front of the 1st defendant's lorry. It is also common ground that the collision occurred while the 1st defendant's lorry was in the midst of overtaking the deceased's motorcycle.

It is, however, the contention of the plaintiff that the 1st defendant was negligent in that he tried to overtake the deceased's motorcycle when in the circumstances it was dangerous to do so; the circumstances being:

(a) that there was a "double line" traffic sign on the road, meaning that the 1st defendant was prohibited from overtaking;

(b) that to the front of both vehicles, there was a junction to the right leading to an Orang Asli settlement known as Kampung Orang Asli Tanjung Sepat; and

(c) that both vehicles were travelling in a residential kampong area.

Based on the evidence, the learned Sessions Court Judge made a finding that the 1st defendant was negligent when he overtook and knocked the deceased's motorcycle. There is no appeal by the defendants against the finding of negligence by the learned Sessions Court Judge.

However, the learned Sessions Court Judge at the same time also found the deceased motorcyclist guilty of contributory negligence and, accordingly, reduced the award by 25%.

The plaintiff's first ground of appeal is against this finding of 25% contributory negligence. The plaintiff contends that there was no contributory negligence on the part of the deceased.

I allowed the appeal in respect of this first ground.

In my view there is no basis to hold that the deceased was guilty of contributory negligence.

The burden is on the 1st defendant to prove on a balance of probabilities that the deceased was guilty of contributory negligence. I do not think that that legal and evidential burden was successfully discharged by the 1st defendant. The evidence of the 1st defendant as to how the accident occurred is not at all that clear.

In my judgment, the 1st defendant was driving dangerously when he tried to overtake the deceased on a stretch of road where not only was overtaking prohibited by law (because of the traffic double line sign) but at the same time he overtook the deceased without fully using the oncoming lane. It can be fairly inferred from the sketch plan that the 1st defendant did not use the oncoming lane to overtake the deceased's motorcycle because the lorry brake marks began not on the oncoming lane but from the centre double line. That this was so is also clear from his evidence when